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The COVID-19 pandemic raises challenging issues for employers, particularly those that have multiple locations, provide a variety of services, and employ a global workforce that may travel routinely for business.

With increasing quarantine and other lock-down requirements appearing across the globe, what should employers be doing now to support the health and safety of their workforces?

An employer’s first priority is to protect the health and safety of its workforce. Recognize that this is unlikely to be a one-time occurrence. Being prepared now will allow employers to iterate in the future.

(1) Understand employer obligations in each affected jurisdiction (which will change).

  • Review applicable government health alerts and requirements for reporting.
  • Review local laws on employee privacy, association, potential for discrimination and leave/benefit/wage & hour entitlements. Remember that the balance between privacy and public health is achieved differently in different countries, but as viruses spread, those restrictions are often relaxed. For instance, primarily due to data privacy laws, employers in most of the EU generally may not notify health authorities that an employee has been infected.
  • Coordinate internally to develop employee communications and plans. Frequent communications with employees and their families is critical. Keeping in contact with official or governmental bodies such as the US State Department or the British Foreign and Commonwealth Office (FCO) is essential to ensure the latest updates are available and to ensure employees are aware of any national contingency plans.

  • In line with local regulations, establish procedures and protocols for temperature checks and testing.

(2) Adopt workplace disease mitigation efforts.

All jurisdictions will have their own local health and safety requirements. Share information from the relevant health authorities on how to prevent the spread of the virus.

At a basic level, workplaces should prioritize basic disease prevention measures, like promoting proper hygiene and actively encouraging workers to stay home if they’re not feeling well. In the US for example, the CDC has additional strategies such as:

  • Place posters that encourage staying home when sick, cough and sneeze etiquette, and hand hygiene at the entrance of workplaces and in other workplace areas where posters are likely to be seen.
  • Provide tissues and no-touch disposal receptacles for use by employees.
  • Instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60-95% alcohol, or wash their hands with soap and water for at least 20 seconds. Soap and water should be used preferentially if hands are visibly dirty.
  • Provide soap and water and alcohol-based hand rubs in the workplace. Ensure that adequate supplies are maintained. Place hand rubs in multiple locations or in conference rooms to encourage hand hygiene.
  • Perform routine environmental cleaning. Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops, and doorknobs. Provide disposable wipes so that commonly used surfaces (for example, doorknobs, keyboards, remote controls, desks) can be wiped down by employees before each use.

Employers should consider providing personal protective equipment (PPE). The key issues are whether masks/gloves will be mandatory for any/all positions and if so, who provides/pays for them. Employers should also consider whether to conduct COVID-19 tests and if so, what type of test to conduct and who conducts it.

(3) Follow Shelter-In-Place (SIP)/ Shutdown Orders.

Across the world, many governments have implemented some sort of shelter in place orders, or other sort of regulation requiring shutdown. It is imperative to stay up to speed on these orders and to know whether a business qualifies as an essential business such that it can stay open.

  • Challenge: determining if a business falls within exemptions.
  • Enforcement: most SIPs provide for civil and criminal enforcement. We are seeing tickets, fines and shut down orders from local authorities.
  • Provide essential employees with travel letters.
  • Prepare for the relaxation as these expire.

(4) Understand that wage and hour obligations are triggered, even in a pandemic.

Employer obligations to provide pay during a shut-down will vary by jurisdiction.

  • Before implementing any changes to the terms and conditions of employment, employers should be aware of the laws and regulations of the applicable jurisdiction, including any duty to consult with unions, work councils or other employee representative bodies, and government agencies.
  • Be aware of increasing legislation on wage replacements, supplements and benefits. Companies should work with counsel to understand the interaction of these government subsidies with the company’s own policies. (Note that some businesses are even making it a company policy to return the subsidy to charities.)

(5) Set policies to manage incidents of exposure at work.

  • Understand your pay obligations during quarantine leave or shut down.
  • Remember that different privacy, workplace safety and disability laws will apply depending on the location of the workforce.
  • Know your reporting obligations. There are various obligations from health authorities to track and inform suspected / confirmed cases to health agencies, and informing others in the workplace.
  • As you plan for the return to work, revisit floor plans, common areas, cafeteria seating, etc. to manage responsible physical distancing. Establish policies limiting in-person interactions and physical contact (e.g. smaller/fewer in-person meetings, limiting the size of in-person gatherings/events, implementing a crowd control plan that sets limits on the number of people on company premises and establishes social distancing measures for customers/guests, and ongoing restrictions regarding travel).
  • Train employees and managers on social distancing policies and protocols.

(6) Satisfy sick leave and supplement sick leave obligations by jurisdiction.  

We generally advise that companies follow their existing medical and sick leave policies, but modified as recommended by the public health authorities. For example, in the US the CDC specifically recommends that companies:

  • Ensure that sick leave policies are flexible and consistent with public health guidance;
  • Develop “non-punitive leave policies” so that sick employees do not feel pressured to come into work where they can infect others;
  • Loosen requirements for a doctor’s note for employees to validate a respiratory illness or to return to work; and
  • Maintain flexible policies that permit employees to stay home to care for a sick family member.

With a large constituent of the workforce now required to work remotely, how can employers make this work well and what are some of the risks to be aware of?

The key is to maintain communication and encourage engagement with employees. Companies should have a cross-functional emergency management team to handle issues such as employee health and safety, internal and external communications, medical leaves, personal leaves and disability accommodations, technology support, and legal compliance. As the situation continues to develop, it will become increasingly important to have a single team that is aware of all potential virus related issues for consistency and precedent-setting purposes. As we prepare to return to work (and recognize that we may indeed see the return of the virus later), maintain these task forces so that, if necessary, you’re ready to gear up quickly.

Three primary risks to consider with a remote workforce are:

  1. Wage and hour concerns
  2. Confidentiality / IP / trade secret security
  3. Employee engagement / morale

(1) Wage and Hour – Recent shelter-in-place orders have forced millions of employees to work at home. Remote work creates complex wage and hour issues, including:

  • The ability to adequately monitor and track time to ensure nonexempt, hourly employees are paid for all hours worked at the appropriate rate. Beyond tracking time for pay, employers must also maintain records concerning employees’ working time under many local laws.
  • Reimbursement of necessary business expenses employees may incur to carry out job duties at home, where doing so may require the use of personal printers, phones, and office supplies. Some jurisdictions impose additional requirements for reimbursing business expenses.
  • Ensuring that employees continue to take meal and rest periods, or other working time restrictions, at the appropriate time, particularly where employees may alter schedules while juggling at-home responsibilities.

(2) Confidentiality / IP / trade secret security – The sudden shift to employees working from home poses new cybersecurity risks for businesses and the employees who work remotely. Here are several steps to minimize risks in this area:

  • Communicate current obligations and requirements in the remote working environment. If you have a robust work-from-home policy, review it now with a specific focus on maintaining your company’s most valuable secrets. If you do not have such a policy, implement something immediately, even if it is temporary. Set clear expectations on what information the business considers to be confidential or trade secrets and what particular steps employees are required to follow when using or accessing that information. Not only does it make business sense to keep employees on notice of company policies and procedures, but federal case law under the Defend Trade Secrets Act (DTSA) has made clear that employees can only be held to trade secret obligations where they are specific and clear, such that employees are “on notice” of the trade secrets.
  • Do you have access to third party trade secrets? Be particularly vigilant. Whether you are a supplier who manufactures to a confidential specification or you are a franchisee with a license to trade secreted knowhow, pay special attention to your obligations and duty of care as you deploy remote workers. Review your agreements or licenses with third parties to ensure that you have rights to operate the business differently with respect to their confidential data. Seek written confirmation up front where there is ambiguity about your employees’ ability to work off-site or access data remotely. A growing number of US disputes relate to information leakage from suppliers, vendors, and third parties, where the damages can be significant. Before you authorize your employees to carry on, give careful thought to what information you own and control and what you do not. Such steps could be critical in avoiding misuse claims down the road.
  • Remind your contracting parties who have access to your own trade secrets of their confidentiality and operational obligations. For many industries, the unauthorized disclosure of trade secrets, and the damage it causes to a business, may not be adequately recompensed by a damages award (not to mention the disruption and cost of any such proceedings). If you have valuable trade secrets that are licensed or accessible to third parties, this may be the time to remind those parties of their obligations in relation to the treatment of this information and inquire as to their security procedures during this period of time where remote working is being commonly put in place.
  • Enact more stringent access policies wherever possible. Establish a protocol for approvals of new or heightened levels of access to information. Ensure that the protocol takes into account whether such access is necessary, particularly when the information is highly valuable. (If you haven’t already, now is the time for an initial assessment of your trade secrets to catalog them and allow you to confirm the data that should be “need-to-know.”) Make clear that any exceptions to general access rules are time limited and actively enforce these limitations. Consider use of technology that allows for review without the ability to download or print documents. Similarly, consider options for monitoring access and evaluating technical infrastructure.
  • Establish a cross-department team to lead confidential data management. Set up a team tasked with data management, including with trade secret expertise. Hold targeted trainings for employees and put out specific communications that are practical, instructive, and clear on employees’ responsibilities, taking into account differences in roles and access to information. Use the team to audit responses and elevate issues, which will be necessary if this situation persists.
  • Document your steps. Trade secret claims often turn on whether a company took reasonable steps to protect the highly valuable information. Documenting your detailed and effective steps in real time will provide another piece of evidence that the company has a legally protectable trade secret.

(3) Employee engagement / morale – Good employee relations demands transparency and that employers be sensitive to the reasonable fears and concerns of employees. Regular communication from the key leadership, whether through video-conferencing or the like, can be used to communicate all that you’ve done to ensure the safety of employees, keep the business running and to reinforce the mission of the company.

No Longer Business As Usual

Post-pandemic, business models may change. The lessons of the last several months should not be lost since, looking ahead, we may see some workplaces shift to true full-time remote work. Accordingly, it’s time to revise telecommuting policies; establish new protocols for evaluating requests to work from home; focus on reskilling or redeployment of workers following changes to the economy; and reconsider health and wellness benefits in light of the major changes to the workplace. The good news is, we get to build the new normal right now. We expect that employers who are creative in leveraging what we’ve learned during this difficult time will reap significant rewards in terms of employee engagement and productivity.